Substitution of the prison sentence for expulsion

The reform of the Penal Code has brought us, among many other things, a new wording of art. 89, that is, the provision that regulates judicial expulsions: the substitution of custodial sentences for expulsion. Until now, we had the dividing line in the six-year sentence: for sentences of less than six years, direct expulsion was foreseen, although it rarely occurred without fulfilling at least the so-called security period; and for sentences of more than six years, expulsion was foreseen after three-quarters of the sentence had been completed, or when the convicted person accessed the third degree of prison treatment. And whenever we speak of foreigners in an irregular situation.

The new wording - which no longer distinguishes between situations of regularity or irregularity, or even citizens of the European Union - marks the dividing line in the five years of sentence, and with soil in sentences of more than one year: these will be replaced directly , except in exceptional circumstances, in which the offender may serve up to a limit of three-quarters of a sentence, or when they access third degree or conditional release, the rest of the sentence will be replaced by expulsion.

In the case of sentences of more than five years, either for a single crime or as a consequence of the sum of several penalties, the judge or court will agree to the fulfillment of “all or part” of the sentence, substituting the rest of the sentence for expulsion and. in any case, the third degree or parole will be replaced. Here the shadow of the security period seems to plan as a minimum of compliance, although the daily practice will lead us to two thirds of the sentence as a general assumption, almost certainly.

The expulsion, which will be agreed in the judgment itself, or by car immediately following the final conviction, entails the extinction of any residence authorization that the interested party may have and the prohibition of entry into the country within a period of five to ten years. This, without a doubt, is a hasty and absurd expiration of the authorization to reside and work that the convict had. Let's imagine that the expulsion cannot be executed, for whatever reasons, and the foreign citizen, once his sentence has been served, will be left on the street but with his residence authorization expired as an added sanction without sense, since we will have a citizen in a situation of irregularity, which cannot be expelled. And without the possibility of a new residence until you cancel the criminal record, you will not be able to work legally either. That is to say, just what the infamous sentence of the CJEU of April 23, 2015, but this time, we now come to this situation by grace of our Penal Code.

The attempt of the expelled foreigner to return to Spain also has its consequences. The reformed CP distinguishes two moments in non-compliance: if the foreigner is caught at the border, he will be rejected at the same border and the entry ban will begin again. There are no changes here compared to the previous regulation. But if he manages to enter Spain, in the first place the provision of the CP (article 89.7) is that he will have to serve the penalties that were replaced. Exceptionally, at the discretion of the sentencing judge or court, in view of the duration of the penalties, when full compliance is unnecessary to ensure the defense of the legal order, it may reduce the time of compliance, without the Criminal Code telling us in how much.

And although the article does not say so, it is clear that, once the full or shortened sentence has been completed, the foreign citizen will be expelled again.

Only, in very specific cases, will the circumstances of the event and the personal ones be assessed, particularly the roots in Spain, to avoid substitution by expulsion. Obviously, a door must be left open so as not to violate the directive for long-term residents, which has already cost Spain several sanctions.

In short, the reform of the article seems to be a transposition of the philosophy of art. 57.2 of the Aliens Law (LO 4/2000) the Penal Code, including all foreign citizens sentenced to imprisonment for more than one year, whether they are regular, irregular or even EU citizens. The reform ditch, by criminal means, the discussion of expulsion as a sanction of art. 57.2 LO 4/2000, or the expulsion of EU citizens in accordance with its own statute contained in RD 240/2007.

Cesar M. Bacon

ICA Salamanca Lawyer. Member of the Penitentiary Subcommission of the Consejo General de la Abogacía Española